Holder argues Congressional authorization is unnecessary to kill Americans, Executive Branch can do what it wants

President Barack Obama's (D) Attorney General, Eric Holder, dropped a bombshell this week, revealing [PDF] that he did consider it acceptable to kill Americans with drone deathstrikes on U.S. soil, but only under "extraordinary" circumstances.

I. A Time to Kill?

He says that such plots had never been performed in the homeland to date. But several Americans have reportedly been killed with drone strikes in the Middle East during the Obama regime was elected into power in 2008.

AG Holder's comments came in response to Sen. Rand Paul (R-Tenn.). Sen. Paul had promised to stall the nomination of John Brennan to become director of the U.S. Central Intelligence Agency. Mr. Brennan is a controversial figure who helped mastermind the program of drone deathstrikes and "enhanced interrogation" (torture) programs in the Middle East.

AG Eric Holder told Sen. Rand Paul that "hypothetically" drone strikes could be used on U.S. soil to kill Americans. [Image Source: AP]

In his letter to Sen. Paul, seeking to clarify when drone strikes would be allowed, AG Holder writes:

The question you posed is.... entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront. It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.

Holder goes on to point to Pearl Harbor and the terrorist attacks of 9/11/2001 as examples of the kinds of threats that might require Americans to be ordered killed by the President.

Reaper drones are currently being used over U.S. airspace. [Image Source: The Real Revo]

There are currently no formal laws passed by Congress governing whom and be killed and when – if the President's premise that death strikes on Americans does not violate Constitutional due process holds true. Further, such strikes appear entirely at the discretion of the President, the military, and the national intelligence agencies -- Congress is not in the loop.

That seems rather curious. The Constitution is unequivocal in that Congress alone has the power to authorize the use of deadly military force. Article 1, Section 8 of the U.S. Constitution, the foundation of the U.S. government, clearly grants Congress the power:

[Image Source: EL Civics]

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

However, according to President Obama and his staff's logic, that power has now been transferred to the executive branch, and what's more, it can be used to kill Americans without a trial on U.S. soil.

The Obama administration argues sometimes American citizens may need to be killed without due process, both abroad and at home. [Image Source: Matt Ortega/Flickr]

The Obama adminstration executed a similar privilege overseas at least once -- ordering a drone strike that killed suspected al-Qaeda terrorist Anwar al-Awlaki, who happened to also be a New Mexico-born U.S. citizen. Other Americans were also killed in other drone strikes, but it is unclear whether those killings were ordered or mere inadvertent attrition.

III. Some Upset About Obama's New Power to Kill Americans

Sen. Paul was not happy with the Obama administration's plan to grant itself the power to kill, and to cut Congress out of the loop. He comments, "The U.S. attorney general's refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening. It is an affront to the constitutional due process rights of all Americans."

Some in the Senate feel the President shouldn't have the power to order the killings of Americans on U.S. soil. [Image Source: Drone Wars UK]

The Obama administration had previously asked its press secretaries to lie about the existence of the memos, claiming they didn't exist. In light of the disclosure, the Senators say in a joint statement, "We are pleased that we now have the access that we have long sought and need to conduct the vigilant oversight with which the committee has been charged. We believe that this sets an important precedent for applying our American system of checks and balances to the challenges of 21st century warfare. We look forward to reviewing and discussing these documents in the days ahead."

The Senate now moves on to debate Mr. Brennan's confirmation, following his confirmation by the Senate Intelligence Committee. There will likely be lively debate from Sen. Paul, et al., during Mr. Brennan's confirmation hearing before the full Senate.

The debate brings to mind the words of George Orwell in an essay on wartime Britain, who wrote, "As I write, highly civilized human beings are flying overhead, trying to kill me."

I'm not an American, so I'm not that well-versed in US law. Can someone explain exactly what the issue is, as this article makes it sound like some Orwellian Big Brother nightmare! All the talk over Obama's "regime" and killing Americans without a trial sounds like sensationalism to make this sound worse than it is. An American pointing a gun at a cop is likely to get killed without a trial, for example.

Is this simply a matter of who has the authority to make the decision to use deadly force on citizens? Or is it a matter of turning the military on the population? If the drone was owned by the police force, would it be ok for it to be used against dangerous members of the public?

Although I didn't vote for Obama and don't like him this is just sensationalism as you stated. You could pose the same question to any of the previous presidential administrations and have gotten or would get the same response that they would use the US military to defend against any terroristic threat that occurs within our own borders. And the fact that they are using drones in this article is silly. You can replace the word "drone" with any other aircraft or weapon system in the US arsenal and get the same response to this question. It just happens that drones are the media buzzword of the year so they are required to use it to meet their quota of using buzzwords that stir up controversy. If they had said the US is going to use F-15 strikes on US soil everybody would be like, mmm ok whatever but when you use the word drone everybody is like "oh my gosh it's so much scarier it's a drone. Eek."

Any of the previous administrations didn't sign a bill into law that authorizes the infinite detention of american civilians without trial on american soil. Nor try and justify such a thing by "well i won't use it", or (succesfully) defend it in the courts. Obama did all these things.

And yes, a drone is definitly scarier. The operator, if any because these things are moving closer and closer to automation, is further removed from the actual killing then ever before. When you're talking a F15 you're talking a highly trained, highly intelligent individual having to come to terms then to decide to fire on american citizens. You don't need all that to fly an quadrocopter with a cam.

The legislation carries as much for quadrocopters with a handgun as for predator drones carrying missiles. I'd hardly think they'd use this legisation to just blow a house up outright, otherwise it'd be done with fighter jets already. And police forces in the US have jumped on surveilance drones as much as civilians have.

Then there's the administration, both this and the previous's spotty record and defining exactly who's a terrorist and who's not. Or have we collectively forgotten those airport terrorist watchlists with old grandma's and young children on it?

Look, obviously the administration isn't picking people off the streets to dissapear forever in some dungeon somewhere. But the legislation they are passing or trying to pass is pointing very clearly towards that direction instead of the opposite one. You better speak up and think about this now while everything is still relatively peachy.

Because what will the administration decide when the economy *really* tanks because of hyperinflation? They will get lynched first chance the people get so they will defend themselves. Anybody who's a threat to the regime will become a "terrorist" and suddenly, there's already a framework in place to kill whoever they want.

Mind you that's the same site that 2 articles later claims house prices are "finally back to normal".

Think up and think hard. This couldn't even be a possibility 20 years ago. It was conspiracy theory talk, those who belived it where nuts. The fact that it's moved from the realm of impossible to reasonably likely, should worry you and everybody enough to do something about it.

Not that I disagree with the rest of the article, but it's more about the increasingly unequal distribution of income (note *increasingly*) than it is about inflation. The 'rising tides raise all ships' that people have been fed is a lie and it blows my mind when people defend the very practices and policies that are hurting them.

quote: I'm not an American, so I'm not that well-versed in US law. Can someone explain exactly what the issue is, as this article makes it sound like some Orwellian Big Brother nightmare! All the talk over Obama's "regime" and killing Americans without a trial sounds like sensationalism to make this sound worse than it is. An American pointing a gun at a cop is likely to get killed without a trial, for example.

Fair enough. Let me explain to you.

In your analogy you pose an imminent threat to the cop and he responds with deadly force.

Note, not once in his explanation did AG Holder make any mention explicitly that imminent danger would be required to justify a drone killing.

That leaves the door open to preemptive assassinations on U.S. soil (read the letter for yourself if you don't believe me).

To modify your analogy, that's like you're sitting in your home, but the cop decides that you're a menace to society and now takes matters into his own hands, busts down your door and sprays you with cold lead, leaving you bleeding and dead.

See the difference?

The CIA has a database called the "disposition matrix", which is thought to control when preemptive assassinations against U.S. born terrorists are authorized. Such strikes are generally preeemptive, and without imminent threat, as in the case of the Yemen killing of Anwar al-Awlaki.

Clearly you see the difference now between self-defense to an imminent danger, and preemptive killings of Americans you think may be planning an attack/part of a terrorist group.

I can see the difference in what you describe there. That wasn't what I got from the article, though.

Continuing with the analogies, the article read like Holder had said that he didn't rule out the possibility of a cop being allowed to shoot an American citizen in certain extreme circumstances. Obviously, he would be right in such a claim and it happens all the time.

Without reading all the source material (and I shouldn't really have to in order to understand the article), its not clear that we are discussing pre-emptive military assassinations of potential terrorists.I'll explain why;

The article spends time concentrating on who has the authority to use force against the US population. It talks about how the constitution states that congress should have that authority, but Obama's administration is suggesting it belongs to the Executive. If this information is relevant, it makes it sound like congress actually has the right to use military force against US citizens.

If the actual point is about assassinating possible terrorist suspects who are also American citizens, it now sounds like the implication is that congress has the right to give such an order. I would assume it actually doesn't.

Hence the reason this seemed to be more about who has the authority, rather than whether excessive force was being suggested.

As you said;

quote: To modify your analogy, that's like you're sitting in your home, but the cop decides that you're a menace to society and now takes matters into his own hands, busts down your door and sprays you with cold lead, leaving you bleeding and dead.

The article comes across like someone making this claim in response to a politician saying that police should carry guns because they will occasionally have to use them. Most would accept that no-one was suggesting allowing the cops to shoot anyone they didn't like the look of, though.

Unfortunately, individualism is bullied and rolled over by populists and collectivists the world around. We drew the line at the end of the 18th century, now people willfully ignore it due to "LOL those old wig wearing slave owners".

Yep. It doesn't matter whether you're an armed "combatant" or someone fed up with their government. If you're a citizen of the US, you're afforded the same rights as everyone else until a court can prove otherwise.

Not anymore. If you live within 100 miles of our border (which I and about 175 million of my fellow Americans do) the DHS has stated the 4th Amendment does not apply to you. So far the courts have backed them, or at least haven't stopped them. We have border patrol agents driving around the Olympic peninsula - why? They won't say. Must be to catch those Mexicans swimming across the Strait of Juan de Fuca.

1 - does this mean they're finally coming for bill o'reilly now? that man poses a clear and imminent danger to brain cells in millions of homes across the USA.

2 - you fat internet hero wanna be vigilantes/upholders o fthe constitution will never rise to actually protect your freedoms, because GWB took a lot of those freedoms away from you and you did nothing. just like now, when all you do is write crap on the internet about obama (whose policies are a mere continuation of GWB's), but none of you will ever do anything about it. that is a fact. you are all bitches to the US government, allowed to bicker and nag, but dogs on a leash nonetheless.

3 - nobody complained when bin laden was killed even though he represented no danger at the time and should have been interrogated and brought to trial. hypocrisy much?

One thing you are missing is that the article is supposed to be sensationalist to draw more views. Dailytech posts sensationalist articles that pander to a group of right-wingers that like to frequent the site posting all day about how much Obama and the left suck.

You are correct this is a bunch of nonsense over nothing. All it does is allow special government authorities to use a drone in the U.S. if absolutely necessary. The military is not being turned against the populace.

As usual the knee-jerk reaction gets lots of media exploitation. There is absolutely no reason why anyone should be concerned about this authorization to use lethal force on a terrorists - no matter what nationality the terrorist is or where he is when they take him out be it with a drone, C4, cyanide or a bullet. the only good terrorist is a dead terrorist.

Blowing their worhtless arse away is doing society a favor. If you're dumb enough to be a terrosits, you're dumb enough to be anhihilated. A drone is very efficient and saves on other services that would be wasted on a piece of garbage.

If this were the only incident of talk like this I might not be as concerned but the fact is there is a trail of this type of talk since Obama took office including his idea to create an ARMY as strong as the military controlled by civilians. With the recent gigantic ammunition and weapons purchases by the DHS and other agencies it make you wonder if such an idea was brought into existence.

Shouldn't be concerned? What about collateral damage? What about The Fifth Amendment? This is about U.S. citizens on U.S. soil. There is no oversight of these proposed drone strikes, let alone due process.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation.

Obviously the President has perfect/God-like judgement, so due process doesn't matter...

Holder's domestic drone strikes are still hypothetical, but the proposition reeks of a willingness to subvert human rights. This, and the fact that he stands behind Fast and Furious (selling/giving guns to Mexican cartels), have me convinced that Mr. Holder is not concerned about endangering us to achieve his goals.

quote: You are correct this is a bunch of nonsense over nothing. All it does is allow special government authorities to use a drone in the U.S. if absolutely necessary.

Who would deem it necessary? POTUS, Congress, DHS, FBI, DOJ, or any number of armed federal agencies that could possibly need such services?

Where is the line that you or I could cross to be the target of such a strike? Obviously that line is not well defined which means that in conjunction with other laws that have been passed/renewed in the past 2 years, you or the guy in the house next door could be named a terrorists for simply using a bad choice of words.

Yeah, there are allot of us out here in the US that are paranoid, but with good reason. Such laws are prone to abuse at the hands of someone who may only have their own best interests in mind.

quote: An American pointing a gun at a cop is likely to get killed without a trial, for example.

Yes, likely to be killed by the cop, or other law enforcement officers.

America's founders drew a stark distinction between the military and law enforcement. They suffered first hand from soldiers and the militaries methods of law enforcement, and saw others suffer back in Europe. The federal government, specifically the military anyway, was not supposed to be placed in the role of dispensing justice. Our military is not trained it, its not their job, and nor should it be.

As much as I support the military, ask the average Okinawan what they think of teenage young men with guns having that sort of authority.

As you point out, if we were talking about police-owned drones using a weapon in an emergency situation, this would be a totally different sort of discussion. It's only that the federal government is trying to reserve this power for their self that it's a problem.

And for all the typical apologists here saying its no big deal, they're only betraying their usual ignorance of history when central governments get this sort of authority. It eventually gets abused, always, as all government power does. That was the whole idea behind the constitution, to limit its powers and thus limit the scope for abuse, but of course they don't comprehend that.

Yup, the founders new that people in power can tend to be self serving Aholes. Somewhere along the way we forgot about this and forgot the underlying reason the founders put all the protections in the first place.

quote: That seems rather curious. The Constitution is unequivocal in that Congress alone has the power to authorize the use of deadly military force. Article 1, Section 8 of the U.S. Constitution, the foundation of the U.S. government, clearly grants Congress the power

but that's not really where I hear people making their argument against this policy. While it prevents the military from striking on US soil, without permission from Congress, it says nothing about any other government entities doing so. Who's to say the FBI can't shoot you up with a drone??

The US Constitution's 4th Amendment is what should disallow this sort of action.

quote: The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and seizure (including arrest) should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it. The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.

The 4th Amendment has been interpreted, by SCOTUS (Supreme Court of the United States), to mean that the government cannot punish its citizens without having them go through due process. Meaning you have to have probable cause, arrest them, prosecute them, and have them found guilty by a jury of their peers, all while preserving any other rights they're given by the US Constitution.

In other words, no man shall be given the sole role of judge, jury and executioner.

THIS is what makes this whole thing stink of a conspiracy by the executive branch, to do whatever they deem necessary, while ignoring the parts of the Constitution they find bothersome.

Killing citizens who have turned their back on their country, moved overseas, and are actively plotting/taking action against their country is in somewhat of a gray area. Doing so on American soil? You've moved out of that gray area, and directly violated that person's Constitutional rights.

Why would you use a drone to go after a suspected terrorist/dissident in the US? You would just have the police pick them up right? The reason you use drones in foreign countries is that those countries are hostile and would likely try to kill the people you send to pick whomever up, right?